New York City Department of Education, Impartial Hearing Decision

NEW YORK STATE EDUCATION DEPARTMENT

IMPARTIAL DUE PROCESS HEARING

x REDACTED, by and through his/her Parent(s), Petitioners,

FINDINGS OF FACT AND DECISION

- against -

Case No. 245625

THE NYC SCHOOL DISTRICT,

BLUETH BROMFIELD, ESQ.

Respondent.

Impartial Hearing Officer

x

JURISDICTION

This case was appointed, the due process hearing was held, and a decision is being rendered, pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq.; the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR § Part 200; and/or Section 504 of the Rehabilitation Act.

PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (hereinafter, “IHO”)

on Petitioners’ due process complaint (DPC), filed on or around February 3, 2023. (P - A).^[1] The resolution period expired without the parties reaching an agreement. This IHO was appointed on February 10, 2023. A pre-hearing conference in this matter was held on, March 7, 2023. Closed hearings were held June 23, 2023, June 27, 2023, July 12, 2023, & August 4, 2023. The initial compliance date was April 19, 2023. Extensions were granted extending the compliance date to September 16, 2023. The record closed on August 16, 2023.

BACKGROUND

What follows below are the facts as per the DPC, parent’s disclosures and DOE disclosures. REDACTED (the student), born on REDACTED, is a child with a disability in need of special education and related services. The student has a disability classification of Autism. The student exhibits challenges with receptive and expressive language, distractibility, self-stimulatory behavior, is non-verbal, and uses gestures and hand signs to communicate. The student’s classification and eligibility for special education supports and services are not in dispute. The school year (SY) at issue in this DPC is the 2022-23 SY, during which the student was in kindergarten attending the REDACTED (the private school).

In December 2021/January 2022 the parents had a psychoeducational evaluation conducted of the student in which the student was diagnosed with severe autism spectrum disorder (ASD). The evaluation recommended: that the student be placed in a small, highly structured, full-time small special education classroom within a full-time special education school, as she requires behavior-based, individualized, and direct instruction throughout the day provided by professionals trained in an ABA-based, data driven model; the program should address the student’s communication, attention, and social difficulties, as well as her independence and overall adaptive functioning; management and reduction of interfering behaviors should be integrated within the educational programming; and the services should be provided on a 12-month basis. Parents shared the evaluation with DOE in preparation for a turning five (T5) Individualized Education Program (“IEP”).

On May 3, 2022, the Committee Special Education (“CSE”) convened for an Individualized Education Program (“IEP”) meeting for the student. The resultant IEP recommended a 12-month 12:1+1 special class in a NYC DOE Specialized School with special transportation and the following related services: Occupational Therapy (OT), Individual, 3 x 30 minutes per week; Parent Counseling and Training (PCT), Group, 5 x 60 minutes per year; and Speech and Language Therapy (SLT), Individual, 3 x 30 minutes per week. (R – 1).

Parents disagreed with the CSE’s recommendation and felt, for the following reasons, that the recommendation was not appropriate and was not reasonably calculated to enable the student to make progress: the CSE failed to conduct a comprehensive reevaluation; a 12:1+1 classroom would be way too large and overwhelming for a non-verbal child; the 12:1+1 program recommendation is inappropriate as it is not full time special education and not supported by the weight of information provided and available to the team; the IEP team did not consider or discuss any smaller settings for the student; DOE did not conduct any behavior assessments, including a Functional Behavior Assessment (FBA), to address the student’s interfering behaviors, like avoidance and self-stimulatory behavior; the CSE failed to fully evaluate the student in all areas of disability – SLT, OT and AT; the IEP team was not duly constituted; and the Parents have been denied their right to meaningfully participate in the development of an appropriate program for the student.

On May 5, 2022, DOE issued a prior written notice (PWN) of the student’s recommended program and indicating that the psychological evaluation, along with a classroom observation, SLT progress report, OT progress report, education progress report and social update were considered in making the IEP recommendations. (R – 2).

On June 10, 2022, DOE sent a school location letter (SLL) informing the parent of the recommended placement for the student for the 2022-23 SY. On June 16, 2022, parent toured the recommended placement. Parent felt that the recommended placement was inappropriate because the school was in an industrial neighborhood, was surrounded by factories, there were loud noises and noxious smells of burning metal or trash, several delivery trucks passed by at high speed, while inside parents could smell the exhaust that was outside the school, and the sensory room was very small with no equipment, which was a concern because the student was sensory seeking. Parents rejected the IEP program and the recommended placement.

On August 22, 2022, through a ten-day notice (TDN), the parents notified the CSE of their intent to unilaterally place the student at the private school. (P – J). As of September 8, 2022, the first day of the 2022-23 SY, parent had not received a response from DOE. On September 12, 2022, the student began attending the private school. The CSE did not acknowledge receipt of the TDN until September 14, 2022. (P – K).

On February 3, 2023, the parents filed the DPC which is the basis for the instant case. The parents maintain that the DOE has failed to provide the student a FAPE for the 2022-23 SY. The parents are seeking relief of direct funding for, and transportation to, parent’s unilateral placement of the student at the private school.

THE HEARING

The following persons appeared at the hearings: June 23, 2023, June 27, 2023 & July 12, 2023

For the Department of Education:

REDACTED, DOE Representative

REDACTED, DOE Psychologist, (Witness #1)

For the Student:

REDACTED, Parent Representative

For the Department of Education:

REDACTED, DOE Representative

For the Student:

REDACTED, Parent Representative

REDACTED, Neuropsychologist, (Witness #2)

REDACTED, Head of School at the private school, (Witness #3) REDACTED, Mother, (Witness #4)

DOE ‘s representative argued as follows. DOE created an appropriate program for the student for the 2022-23 academic SY. DOE created an IEP in which the IEP team considered a number of evaluative documents, as listed on the PWN. The student was using the Picture Exchange Communication System (PECS), and it was appropriate, therefore an AT evaluation was not necessary. DOE timely offered a school location, then properly provided notice on June 10, 2022. The private school is not an appropriate placement for the student for the 2022-23 SY, as it has the responsibility to provide everything that the student needs, but it doesn’t. Lastly, DOE reserves its right to make any arguments as to equities.

The parents’ representative argued that DOE failed to offer the student a FAPE. DOE has the burden of production and persuasion on all items related to prong I. DOE is unable to show that it offered the student a FAPE and that a 12:1+1 recommendation was appropriate. DOE is required to provide PWN of the proposed evaluations in advance of the IEP meeting and to determine whether all the evaluations conducted were sufficient. DOE has failed to establish that the parent was, (a) provided notice of the IEP meeting, (b) was provided PWN of the IEP meeting, and (c) was provided with copies of all evaluations and assessments that were used at the IEP meeting, so the parent could meaningfully participate. Also, there were areas of suspected disability that DOE should have evaluated the student in but did not. The student is non-verbal and has maladaptive behaviors. DOE was required to, but did not, conduct an SLT evaluation, an OT evaluation, an AT evaluation, or an FBA, and behavior intervention plan (BIP), if applicable. The IEP team’s finding that the student could not handle AT was pure conjecture and was not based on any evaluation. The student should've been referred for an AT evaluation. The student’s self-stimulatory behaviors have not been addressed appropriately in the IEP. A 12:1+1 recommendation is not an appropriate recommendation for the student as she requires a small program. The IEP team did not consider any setting smaller than a 12:1+1 classroom. In addition, as part of its prong I burden, DOE must show that the placement that was offered to the student was appropriate and could have implemented the IEP as written, yet there is no evidence from DOE that had the student attended the recommended placement, it would have been able to implement the IEP. The recommended placement was not appropriate. Also, the IEP was predetermined. Once DOE fails to show that they've offered a FAPE, the inquiry turns to prong II for parents to show that their placement is reasonably calculated to meet the student's needs. Here, that burden is established by the testimony of the private school. Lastly as to prong III, the parents did not obstruct the DOE's process and they participated with DOE at all times.

Relevant portions of the witnesses’ testimonies are as follows.

Witness #1 - Affidavit & Live Testimony

She is a psychologist with DOE. [The witness provided credible and relevant testimony as to her educational background, state licensing, certifications, and professional experience]. She is familiar with all of the special education services provided by DOE. Her duties include creating IEPs, holding IEP meetings, conducting psychoeducational evaluations, educational or psychological evaluations, reviewing progress reports, completing classroom observations of students, conducting FBAs, drafting BIPs, and consulting with teachers and other interdisciplinarians. She is familiar with the student as she participated in the meeting, in the capacity of school psychologist and district representative, that resulted in the May 3, 2022 IEP for the student. The IEP meeting for this case was a reevaluation, T5 review, for the student going into kindergarten. For the IEP meeting she reviewed and considered her own personal classroom observation, OT progress report, psychological evaluation, SLT progress report, a social history update, and an educational progress report, as well as input from the parents during the IEP meeting. Based on the information contained in the reports, the IEP team determined that the student was a student with Autism. Per the SLT report, the student presented with significant delays in all domains of language including receptive, expressive, pragmatics, as well as play skills. Per the psychological evaluation, the student had significant challenges with receptive and expressive language, distractibility and self-stimulatory behavior that interferes with standardized assessments and her full cognitive potential is unknown. Per the classroom observation, the student was largely compliant but required some prompting and redirection and needed hand over hand and step by step support to write her name and complete her art project. Parent did not report any physical concerns at the IEP meeting, nor did parent express a concern or need for the student to be evaluated for AT at the IEP meeting. Although the student was reported to use non-verbal communication to express her wants and needs, she was also reported to be working towards Phase 4 of the PECS, a form of AT. At the time of the meeting, it was felt that continuing to utilize PECS was an appropriate level of support, given the student’s age and abilities. The IEP team did not believe the student could access a more complex AT device at that time. The IEP team recommended that the student be placed in a 12:1+1 classroom in a D75 school on a 12-month basis. Although the IEP only notes that a special class in a community school with a 12:1+1 class ratio was considered, the IEP team actually considered the full range of options available on the continuum of services. A special class in a community school with a 12:1+1 was the only option listed because it was the closest to what the IEP team ultimately believed was the most appropriate setting. The continuum of services and the reason for recommending the 12:1+1 class in a District 75 school was explained to the parent at the meeting. In a 12: 1+1 classroom, the student would have appropriate social role models and peers with similar needs. A smaller classroom setting would include students with maladaptive behaviors and would be more distracting for her. With two adults in the room at all times, the student would have ample support to ensure she could access the curriculum. The IEP team recommended individual sessions of the student's related services so that she could work on the related skills alone, allowing her an opportunity to focus on the skills being taught. The IEP team used the available information to create a thorough and appropriate program for the student in the least restrictive environment (LRE).

She was aware of the 8:1+2 setting in which the student was in for pre-school and the IEP team considered the 8:1+2 program in which the student was sitting at the time of the IEP meeting. DOE is supposed to provide PWN in advance of an IEP meeting telling the parent what evaluations and assessments the DOE is considering as part of the reevaluation process. The PWN is usually sent with the consent request. She believes that the pre-meeting PWN was sent to the student’s family in advance of the IEP meeting, but she is not 100 percent certain. She conducted the classroom observation of the student. She could not recall how long the observation lasted, but the minimum time is 30 minutes. The IEP team recommended the 12:1+1 setting because the student was non-verbal, needed individualized attention and it was the LRE. The continuum of services available in a D75 12-month setting are 6:1+1, 8:1+1, 12:1+1, or 12:1+4. However, a setting with more individualized attention would not have been the LRE and a smaller setting would have other students with maladaptive behaviors. The IEP states that a 12:1+1 class in a community school was the only other setting that was considered for the student. There were no other options considered. The difference between a 12:1+1 in a community school and a D75 school is that the D75 program is 12-months. As the school psychologist on the IEP, she is ultimately responsible for making the determination of what assessments and evaluations are required prior to an IEP meeting. The IEP indicated that the student had self-stimulatory behaviors and interfering behaviors, but she did not order an FBA for the student as she felt it was not warranted. The IEP indicated that the student was using AT, at the time of the IEP meeting, to communicate, and she could have requested an AT or an SLT evaluation for the student, but she did not because she felt it would have been redundant with the SLT progress report. PECS was discussed with the parent in the context of the SLT progress report, but she did not recommend AT or PECS for the student within the IEP.

Witness #2 - Affidavit & Live Testimony

He is a psychologist and neuropsychologist. [The witness provided credible and relevant testimony as to his educational background, state licensing, certifications, and professional experience]. He has a private practice that is devoted to developmental, psychological, educational, and neuropsychological evaluations from infancy through young adulthood. He is familiar with the full range of programs that the CSE can provide to students with disabilities in NYC, and he has visited all programs on the DOE continuum of services. He is familiar with the student as he has been working with her and her family since 2021. The student is nonverbal and has significant deficits across all areas of functioning and has challenges with receptive and expressive language, distractibility, and self-stimulatory behavior. He diagnosed the student with ASD. He conducted a classroom observation of the student on January 13, 2022. She was in a pre-kindergarten classroom of 8:1+2. He conducted a psychological evaluation of the student in January 2022. (P – B and R – 5). He recommended a kindergarten placement in a small, highly structured, full-time special education classroom within a full-time special education school, alongside appropriate peers. The student required behaviorally based, direct instruction in an ABA-model. This program needed to intensively address her communication, attention, and social difficulties with management and reduction of her interfering behaviors. He reviewed the student’s May 3, 2022 IEP, in which the IEP team agreed with his recommendations for the student. (R – 1, pg. 4). So, he was surprised to read in the IEP that the IEP team felt that the student did not require positive behavioral interventions, supports and other strategies to address her behaviors and that an FBA was not conducted in advance of the IEP meeting, despite his report specifically indicating that the student required behavioral-based intensive 1:1 support to reduce those behaviors that interfered with her learning. The student would not make progress in the IEP program recommendation of D75 12: l+1, and such a recommendation would have placed the student at significant risk for regression. District 75 offers 12:1+1, 8:1+1, 6:1+1 and 12:1+4 classrooms. The 12:1+1 classroom is the largest District 75 offers. All other settings within District 75 are smaller than 12:1+1, yet those smaller classrooms were not considered or discussed with the parent at the IEP meeting. Also, the 12:l+l recommendation was for 24 periods per week, which does not align with his recommendations for a full-time special education program. He is familiar with the private school where the student was placed. The private school is a school for children with ASD, is an ABA program that includes development of an FBA and BIP for all if its students and offers small special education classrooms with low to teacher ratio and intensive related services (all their classrooms are smaller than 12:1+1). He had reviewed the student’s progress reports for the 2022-23 SY and the reports indicate that the student made progress.

He did not recommend a specific class size, or exact ratio, in his evaluation; but based on his description of the program that the student needed (1:1 ABA data-driven direct instruction), he did not fathom that DOE would think that he meant a 12:1+1. He is familiar with DOE's legal requirements to provide services in the LRE.

Witness #3 - Live Testimony

She is the Head of School at the private school. [The witness provided credible and relevant testimony as to her educational background, state licensing, certifications, professional experience and duties and responsibilities. Her CV is exhibit P.] She is a board-certified behavior analyst at the doctorate level. She founded the private school in September 2021. The private school serves student’s ages 5 to 15 years. For the 2022-23 SY there were 29 students at the school, ages 5- 12 years. Most of the students have ASD, and a few have ASD and multiple disabilities, speech impairment or learning disability. ABA is a science in which one applies the principles of behavior analysis systematically to improve socially significant behavior. It’s a schoolwide approach. The private school focuses on teaching the students to make a real connection with the real world; therefore, there is focus on how skill can be generalized outside of the classroom, in the community and at home. For that reason, there is close communication between parent, school and home. There are weekly email updates to families from the head teachers and all therapists working with the student. The private school also focuses on fluency training so that skills can be taught to not only to mastery but with accuracy and speed so that students can access those resources or skills almost automatically without thinking. The private school provides related services of OT, SLT, PT and counseling services (CS). There is a schoolwide sensory integrated system, including sensory integrated lighting, features on the wall and a sensory gym. The private school conducts FBAs the moment they receive a student’s admissions packet, and then creates a BIP after interviewing the family, collecting information and observing the student. For the 2022-23 SY, the private school offered its student either a 6:1+2 or an 8:1+2 ratio classroom, and often times the ratio is improved when the related service therapist push-in to a classroom to work on carryover of skills that are taught in the individualized therapy sessions. Data on each student is collected, graphed and analyzed daily, and then that data is summarized and reported in quarterly progress reports to inform families and other professionals involved in the student's education and therapy. There are weekly behavior analytic supervision and training sessions to all staff members, daily morning meetings with all faculty members, 1:1 behavior analytic supervision and training sessions between the witness and her staff weekly, and ongoing in-classroom direct and indirect observations. She is familiar with the student, having first meeting the student during the admissions process in September 2021, and getting to know her through drop-off, pickups, observations and school activities. The private school addresses the student’s sensory needs by providing her with individual OT three times per week and by implementing the REDACTED program – which focuses on the students' self-awareness, social-emotional learning, and self-management skills. Also, the private school implemented positive intervention measures such as a visual schedule and a token economy. The student was in a 6:1+2 class, but often times she received 1:1 support, as there were less student in the classroom as a result of other students receiving their related services throughout the day. When she first came to the school the student was not able to greet others or respond to a greeting, not able to make her wants known, not able to follow vocal directions, and demonstrated weak listener and speaker behaviors. By the end of the SY, the student was observed arriving to school and being able to echo a greeting, wave her hand, sit with her peers, wait for the class to transition to the classroom, and then once in the classroom she was able to complete her morning routines. However, the student still requires a high level of support to expand and advance her language skills. In terms of her behavior, at the beginning of the SY it was very challenging for the student to sit in her chair or follow instructions, she would often engage in crying, screaming, yelling behaviors, she would try to pinch or push other students and also teachers, she required constant prompting to return to a designated area or her desk and she required 1:1 support throughout the school day to help her understand classroom expectations and rules. Towards the end of the SY, the student was able to participate in a group lesson without requiring a physical prompt to return to her seat, she actively engaged in all activities with her peers, and she was able to complete one-step directions independently throughout the school day. In terms of academics, at the beginning of the SY, the student was missing was missing prerequisite academic skills. By the end of the SY, the student was able to match the sample and follow the instructions very well; but she still showed difficulties in following listener response or interval or tact responses. The private school provides weekly email updates for the parents, provides monthly parent education training, and meet with the parents as needed. The student received OT three times a week and throughout the SY the student’s SLT mandate was increased to five time a week. The student has made progress throughout the 2022-23 SY. She made progress in pre-academics, self-management, self-care, and social communication skills because of the level of support she received. The student’s tantruming, and noncompliant behavior has decreased to between zero and less than three occurrences a day. She has become more independent. The witness does not think that the student could have made the progress she has if she was in a classroom larger than 6:1+2.

The student did not have an AT device (one was requested from the district but was not received until the 2023-24 SY from another source), but the speech pathologist implemented a picture exchange program, which helped the student to improve her mand and text repertoire. The student made some progress with the PECS program but would have made more progress with another device. The private school does not provide communication devices to its students as the devices are supposed to be provided by the school district. Witness #4 – Live Testimony

She is the student’s mother. The student was attending preschool based on DOE’s recommendation. At the preschool, the student was in an 8:1+2 setting and receive related services on SLT and OT. The student has autism and is non-verbal, doesn’t transition well, is sensory seeking, and self-stimulates. In preparation for the student’s kindergarten SY, the 2022-23 SY, the parents brought the student to a neuropsychologist, witness #2, to find out what was best for the student as the parents had never dealt with anyone with autism before. The parents received the neuropsychologist’s report in January 2022, and it was shared with DOE. The student was not receiving ABA at the time. Witness #2 told the parents that the student needed ABA and a small class, and he mentioned that the private school would be a good fit for the student. After meeting with witness #2, the parents applied for the student’s admission to the private school. Parents, however, wanted to see what the DOE had to offer first because they didn’t have the money to pay the $110,000 tuition for the private school. She attended the students T5 IEP meeting. At the meeting, the IEP team recommended the student for a 12-month program in a 12:1+1 class in a D75 school. The IEP team did not discuss other class sizes, did not discuss witness #2 neuropsychological report although they noted that the report was received, and they did not discuss any other specific reports or evaluation. She does not recall discussing AT or the PECS program at the turning 5 IEP meeting. She does not recall being provided copies of reports from the DOE in advance of the IEP meeting, but she does recall receiving the PWN. The IEP team did not do any evaluations of the student, even though she had consented for the student to be evaluated. She was surprised with the IEP team’s recommendation because the student cannot communicate and was previously in an 8:1+2 setting and was going to be placed in a 12:1+1 setting. Despite her concerns, she was still open to the recommendations of the IEP. She received a DOE recommended placement for the student and immediately set up an appointment to tour it. The recommended placement was REDACTED. The parents were greeted by the parent coordinator who took them to a class that the student was supposed to be placed in. She observed that one child was with a para, the teacher was instructing the class, a student was pacing back and forth on the side of the classroom and the classroom was very loud. Parents were also taken to the room where the student would receive SLT services and to the library, where she would receive OT services. The student is a sensory seeker and nothing in the school was sensory, also, smells from outside were coming into the building, which would be a trigger for the student. Parents did not think that the recommended placement would be right for the student as she would be triggered there. Thereafter, parents signed the contract for the private school, which indicated a tuition of $96,367.52 for the 10-month SY. The parents chose the private school because ABA was provided throughout the day, the sensory gym was attractive to the student, and the student was offered a 6:1+2 class. During the 2022-23 SY, someone from DOE reached out to the parent about getting an AT device for the student, however, none was provided. The private school was able to get a loaner device from the student’s prior preschool. The student has made progress as she is managing herself and transitioning better, and the student is making more sounds. Parents believe that the private school has been an appropriate educational placement for the student for the 2022-23 SY.

ISSUE

The issues are: whether DOE is required to directly fund tuition in relation to the parents’ unilateral placement of the student at the private school?

RULE OF LAW

Tuition Reimbursement – The 3-Prong Burlington/Carter Analysis The issue of whether a parent is entitled to tuition reimbursement for unilaterally placing their child at a private school is governed by the three-prong Burlington/Carter analysis. See School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985), and Florence County School District Four v. Carter, 510 U.S. 7 (1993). Burlington/Carter provides that a Board of Education is required to pay for educational services obtained for a child by the child’s parents, (1) if the services offered by the Board of Education were inadequate or inappropriate, (2) the services selected by the parents were appropriate, and (3) equitable considerations support the parents’ claim. First Prong States receiving public funds under the IDEA are required to provide FAPE to “all children with disabilities.” 20 U.S.C. § 1412(a)(1)(A); see Bd. of Educ. v. Rowley, 458 U.S. 176, 179 (1982). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). The IDEA directs that a determination as to whether a student received a FAPE must be based on substantive grounds and/or procedural inadequacies. 20 U.S.C. §1415(f)(3)(E). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000). Specifically, a procedural FAPE violation has occurred if the district’s alleged procedural inadequacies: (a) impeded the student’s right to a FAPE, (b) significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the Student, or (c) caused a deprivation of his educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007)

Second Prong The appropriateness of the parents’ choice turns on whether the chosen school “is reasonably calculated to enable the child to receive educational benefits.” Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007). A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Id. The parents’ choice must be “appropriate,” “not . . . perfect.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be likely to produce progress, not regression.

Third Prong The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if (1a) at the most recent IEP meeting, prior to their removal of the child from public school, the parents did not inform the CSE that they were rejecting its proposed placement and that they intended to place their child in a private school at public expense or (1b) the parents did not provide the school district with written notice of such information ten business days before such removal; (2) if the district prior to parent’s removal, informed the parent of its intent to do an evaluation of the student but the parents did not make the child available for the evaluation or (3) upon a judicial finding of unreasonableness with respect to actions taken by the parents. 20 U.S.C. 1412(a)(10)(C)(iii). Factors relevant to equitable considerations include whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014].

Transportation The IDEA specifically includes transportation, as well as any such developmental, corrective, and other supportive services necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]). In addition, State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs" (Educ. Law §§ 4401[1]; 4402[4][a]). Transportation as a related service can include: travel to and from school and between schools; travel in and around school buildings; and specialized equipment, such as special or adapted buses, lifts, and ramps (34 CFR 300.34[c][16]). Special transportation must be included on a student's IEP if required to assist the student to benefit from special education (Application of a Child with a Disability, Appeal No. 03-053; see Questions and Answers on Serving Children with Disabilities Eligible for Transportation, 53 IDELR 268 [OSERS 2009]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense (8 NYCRR 200.1(ww)).

Burden Of Proof

The burden of proof, including the burden of persuasion and burden of production, is on the DOE to show that it provided FAPE to the student, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. Thus, the school district bears the burden of proof on the first and third prongs of the Burlington/Carter test and the parent has the burden of proof for the second prong. See N.Y. Educ. Law § 4404(1)(c).

APPLICATION OF LAW

As a preliminary matter, I find that the DOE failed to procedurally provide the student FAPE in that DOE failed to provide the parent with a PWN and with copies of the reports/evaluations considered in advance of the IEP meeting. DOE also failed to substantively provide the student FAPE, as is demonstrated in the application of the Burlington/Carter analysis below.

The DOE has failed to meet its burden that it provided the student with a FAPE for the 2022-23 SY. DOE recommended a program for the student without conducting any evaluations. DOE did not demonstrate that it had conducted a comprehensive evaluation of the student, even though the student was turning five, was entering kindergarten, and was entering a school aged program in a DOE school. The student was completely non-verbal, used gestures and hand signs to communicate, was using an AT program and was described by witness #1 as presenting with significant delays in all domains of language and having significant challenges with receptive and expressive language; yet DOE failed to conduct an SLT and an AT evaluation. The student displayed maladaptive behaviors, and witness #1 described the student as having delays in play skills, distractibility, and self-stimulatory behavior; yet an FBA and BIP were not done for the student. The student had severe autism and witness #1 stated that the student’s full cognitive potential was unknown, but no neuropsychological or psychoeducational evaluation of the student was conducted by DOE. The student was not evaluated in all suspected areas of disability. Witness #1 described the student as being largely compliant but requiring some prompting and redirection and needing hand over hand and step by step support; yet, the IEP team recommended that the student be placed in a 12:1+1 classroom in a D75 school without considering any other smaller classroom settings for the student, especially where all other class sizes in a D75 school were smaller than 12:1+1. DOE argues that an evaluation would be redundant with progress reports, but evaluations and progress reports are not the same. DOE also established that the parent’s psychological evaluation did not make a specific recommendation for a specific class size, but a recommendation for a small class could not reasonably translate into a classroom where there is one adult for every six children and the student was non-verbal and needed “hand over hand and step by step support”. The student could not have received the recommended support she needed in a 12:1+1 setting where she had to compete with eleven other disabled students to get support from two adults. DOE’s recommended education program was not reasonably calculated to enable the child to make progress appropriate in light of the child’s circumstances. Therefore, the student was not provided a FAPE for the 2022-23 SY.

Parents have sustained their burden of demonstrating the appropriateness of the private school placement. The student was diagnosed with autism, is described as non-verbal and sensory seeking, and a January 2022 psychological evaluation recommended that the student be placed in a highly structured, full-time small special education classroom within a full-time special education school that addresses the student’s communication, attention, and social difficulties, and which provides direct instruction throughout the day provided by professionals trained in ABA on a 12-month basis. The private school is a 12-month independent ABA special education school designed for individuals on the autism spectrum. It offers small environment special education classrooms with low student-to-teacher ratios of 6:1+2, 8:1+2, or 10:1+2, and related services including SLT, OT, PT, and CS. The school focus generalizing skills to outside of the classroom, in the community and at home. There is close communication between parent, school and home. There is a schoolwide sensory integrated system. The private school conducts an FBA of all students upon admission, and then creates a BIP. Data on each student is collected, graphed and analyzed daily, and then that data is summarized and reported in quarterly progress reports. The student was placed in a 6:1+2 class, but often times she received 1:1 support. The private school provides weekly email updates for the parents, provides monthly parent education training, and meets with the parents as needed. The student received her mandated related services of OT three times a week and the student’s SLT IEP mandated services were increased from three to five times a week. In addition, the student has made progress during the 2022-23 SY. She’s made progress in pre-academics, self-management, selfcare, and social communication skills. The student’s tantruming, and noncompliant behavior has decreased to between zero and less than three occurrences a day. She has become more independent, she is getting better at transitioning, and while she is not yet speaking words, she is making more sounds. The private school program is appropriate, addresses the student’s academic and social/emotional needs and is reasonably calculated to enable her to receive educational benefits. DOE argues that the private school is not appropriate as it does not offer everything the student needs, specifically an AT device, as it relies on the district to provide the devices. However, the private school is not required to provide every service that the district provides, in order to be considered appropriate.

The DOE has failed to meet its burden that the equities were not in the parents’ favor. I do not find any equitable issues and DOE made no arguments as to equities. Absent proof otherwise, I find that the equities favor the parent. There is no evidence that the parents did not attend the IEP meetings, that the parents did not provide the district with a TDN, that the parents were not cooperative with evaluations or that there was unreasonableness or wrongdoing on the part of the parents. Parent provided their own psychological report which DOE accepted, attended the IEP meeting, toured the recommended placement, notified DOE of their concerns and sent a TDN. Here, equitable considerations favor the parent.

CONCLUSION

I find that DOE failed to provide the student with a FAPE, the parent’s unilateral placement of the child at the private school was appropriate and the equities favor the parents. Accordingly, the parents are entitled to direct payment of the tuition to the private school for the 2022-23 SY. The total cost of the 12-month tuition at the private school is $110,000; however, the student only attended the school for the 10-month SY, so the prorated tuition cost, inclusive of related services, as per the tuition contract is $96,367.52. (P – E). Parent has testified that the parents do not have the ability to make any payments toward the tuition, therefore, DOE must fund all the student’s prorated tuition cost. In addition, as per New York Education Law §4402(4)(d), the student is entitled to special education transportation to and from the private school, as provided in the IEP.

Accordingly …

ORDER

Based upon the foregoing, it is hereby:

1. ORDERED that the New York City Department of Education failed to provide the student a FAPE for the 2022-23 SY;

2. ORDERED that DOE make direct payment to the private school in the amount of $96,367.52 for the student’s prorated tuition for the 10-month 2022-23 SY.

3. ORDERED that DOE shall provide the student with appropriate special education transportation to and from the private school for the entirety of the 2022-23 SY.

IT IS SO ORDERED.

Dated: August 16, 2023

BLUETH BROMFIELD

BLUETH BROMFIELD, Esq.

Impartial Hearing Officer

EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS

1. IEP, 5/3/22, 22 pgs. DOE

2. Prior Written Notice, 5/5/22, 4 pgs.

3. Signed Consent for Additional Assessments, 1/23/22, 1 pg. DOE

4. T-5 School Location Document, 6/10/22, 6 pgs. DOE

5. Psychological Evaluation, 1/13/22, 7 pgs.

6. Classroom Observation, 4/7/22, 2 pgs. DOE

7. Annual Education Report, 1/21/22, 3 pgs. DOE

8. Quarterly Education Progress Report, 2021, 2 pgs. DOE

9. Annual Occupational Therapy Report, 1/14/22, 3 pgs. DOE

10. Quarterly OT Progress Report, 2021, 2 pgs. DOE

11. Quarterly Speech Progress Report, 2021, 3 pgs. DOE

12. Affidavit – REDACTED, 6/16/23, 5 pgs. DOE

PARENT EXHIBITS

A. Due Process Complaint, 2/3/23, 6 pgs.

B. Neuropsychological Evaluation, 1/2022, 7 pgs.

C. OMITTED

D. OMITTED

E. REDACTED Enrollment Contract, 6/21/22, 15 pgs.

F. REDACTED Program Handbook, 2022-2023 School Year, 31 pgs.

G. Attendance, 2022-2023 School Year, 1 pg.

H. Schedule, 2022-2023 School Year, 1 pg.

I. Progress Reports, 2022-2023 School Year, 23 pgs.

J. Notice of Unilateral Placement, 8/22/22, 2 pgs.

K. DOE Response to Exhibit J, 9/14/22, 1 pg.

L. Due Process Response, 3/30/23, 3 pgs.

M. OMITTED

N. OMITTED

O. OMITTED

P. REDACTED Curriculum Vitae, Undated, 9 pgs.

Q. Affidavit of REDACTED, 7/27/22, 5 pgs.

R. Tax Returns – REDACTED, 2022, 15 pgs.

IHO EXHIBITS

None

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

Footnotes

[1] The Hearing Officer Exhibits, if any, will be referred to as “(IHO- (followed by a roman numeral))”; Petitioners Exhibits, if any, will be referred to as “(P-(followed by a letter))”; and, Respondent Exhibits, if any, will be referred to as “(R-(followed by a number))”. References to the hearing transcript, if any, are denoted as (TR, (followed by a page number)).